Smith v. Union Electric Light & Power Co. ( 1910 )

REYNOLDS, P. J.

(after stating the facts). — The errors assigned in this court by counsel for appellant are, first, that the court erred in refusing to give an instruction in the nature of a demurrer to the evidence asked by appellant; that it erred in refusing to give the instruction marked “Instruction C;” and that the court erred in giving the first instructions asked for the defendant. The objections urged to the first instruction are to the words which we have italicized, that is to say, to the words in that instruction which told the jury that they could find for plaintiff if they found that he had been hurt and “that defendant provided and furnished said plank for use in said platform,” and the words further along in that instruction, “and if the jury further find from the evidence that defendant in furnishing and providing said plank for use in said platform failed to exercise ordinary care.” It is objected to these clauses or phrases in this instruction that they assume that the defendant had provided and furnished the plank, the breaking,of which was the cause of the accident, and it is insisted that there is no evidence in the case that the defendant had provided and furnished said plank for use in this platform. We think that this criticism of the instruction is valid and that the presence of these words in this instruction was harmful error. The evidence shows very clearly that plaintiff and his fellow-workmen, pipefitters, picked out and selected these planks themselves. Neither of the vice-principals, Tenney or Saffley, was present when they selected these boards. All the direction that these fitters had from either of these men was when they were through working at one place to go to another where there was scaffolding and work there. The selection of the boards to go on the west scaffolding Avas left to them. They Avere not told by any one what boards to take nor where to take them from. When they got to this south scaffolding they found no platform and that the carpenters were about to remove the boards from the west scaffold and carry them to another platform or scaffolding. Gallagher, who, while apparently the head of this particular gang of fitters — plaintiff and Altman being fitters’ helpers, all of them practically fellow-workmen — asked the carpenters to leave them a couple of those planks which had been in use in the west scaffold. The carpenters did so and let them have two, which the fitters took from the carpenter as he was canying them away and placed them in position on this south scaffold. One of them broke. There is no evidence that anyone who can be said to have been the representative of defendant furnished these particular planks to these fitters, with which to build this platform on which they were to work. So that these words, as used in this instruction, in leading the jury to believe that under the law and the facts they had a right to assume that the employer had furnished the defective board, were without evidence to support them, were misleading and should not have been used. Moreover, the employer is responsible only when either actual knowledge of the defective tool or appliance is brought home to him, or such facts are in evidence as warrant the jury to assume that he has or should have such knowledge. The employer is chargeable -with notice and knowledge of those things which he ought to know. No such actual or constructive knowledge is, in this case, brought home to the employer. No one authorized by his position or employment to represent the employer knew that these men were about to use this board. Nor is any knowledge of its defective condition brought home to defendant. Its selection and use were one act — no time intervening in. which any one representing the defendant could know either fact. [Burnes v. Kansas City, Ft. S. & M. R. Co., 129 Mo. 41, 1. c. 52, 31 S. W. 347.] The defect in the board was one that plaintiff himself has testified could have been discovered on inspection; inspection would have shown it to have been defective and unsafe and unfit to bear the weight proposed to be put on it. It was a cross-grained, knotty plank. Plaintiff and his fellow-workmen selected it. Counsel on either side refer to and quote from Bowen v. Chicago, B. & K. C. Ry. Co., 95 Mo. 268, 8 S. W. 230, in support of their position. Learned counsel for appellant quote from it that portion which is on page 277, commencing with the words, “A servant is not a mere machine, employed to drive a nail here or a spike there,” and ends the quotation with the authorities cited in support of that proposition ; while the equally learned and industrious counsel for the respondent quotes from the same case, commencing exactly where counsel for respondent left off on page 277, but quoting only the rest of it on that page. On the very next page, however, page 278, the court says: “Now in this case it is no part of the duty of the plaintiff to build or to keep the bridge in repair. Neither he nor his foreman had anything to do with it. It was held out to him as reasonably safe for the passage of construction trains, by the very act of taking him back and forth. The bridge was planned and built under the supervision of foremen, employed for that purpose. The acts of these foremen were the acts of their principal, and not the acts of a fellow-servant of the plaintiff.” This language, taken in connection with the facts of the case, shows that the point in decision does not meet the case at bar. Here plaintiff and his fellow? workmen selected these boards themselves and put them into position. It is true, and necessarily so, that they selected them from material furnished by the master, the employer, but the evidence shows that there was a large quantity of boards available and serviceable for use and that the selection of the particular board was a matter in which neither the employer nor any of the foremen directly in charge of the work had anything whatever to do. It falls in a measure under the principle announced in that part of the opinion in the Bowen case which is quoted by counsel for appellant, to the effect that where the master employs competent workmen and provides suitable material for staging and entrusts the duty of erecting it to the workmen, as a part of the work which they are engaged to perform, the employer is not liable to the workman for injuries resulting from falling off of the staging. “The negligence in such cases,” says the court, “resolves itself into negligence of a fellow-servant.”

The case of Forbes v. Dunnevant, 198 Mo. 193, 95 S. W. 934, is more nearly analogous in its facts to the facts in the case at bar. In that case it is said that the master may trust the servant to perform the intermediate, the ordinary and simple duties incident to the servant’s employment and rest upon the servant’s knowledge and skill. “The .master buys a mass of raw material — some bad, some good.” But says the court, “must he be present in person, or constructively, at every precise moment of time to select and deliver to that carpenter a sound board, so that the carpenter will not hurt himself or fellow-craftsmen or may he trust that carpenter to select a good board from the mass of raw material? We think there can be but one answer to this question.”

We are referred to the cases of Combs v. Rountree Const. Co., 205 Mo. 367, 104 S. W. 77, and Kennedy v. Laclede Gas Light Co., 215 Mo. 688, 115 S. W. 407. On an examination of those cases, we do not think th'at the facts in them are applicable to the case at bar.

Our conclusion upon the whole case is that the demurrer to the evidence at the close of the case should have been given, on the ground that there was no • evidence in the case on which the liability of the employer, defendant in the case, can be attached to make it responsible for the selection of the board, the breaking of which was the cause of the accident. Plaintiff’s own testimony fails to establish knowledge of the defect on his employer, and further shows that he and his fellow-workmen — without direction from the employer, selected this defective board; that without any examination of its condition he used it, and that the slightest inspection on his part would have shown him that it was -unsafe. So that by his own carelessness he caused his hurt.

The judgment of the circuit court is reversed.

Goode, J., concurs; Nortoni, J., dissents.